STANDARD TERMS AND CONDITIONS OF PURCHASE
OURPET’S COMPANY, AS “BUYER”
- ACCEPTANCE: Unless otherwise agreed in writing by the parties, Seller will be deemed to agree to the terms and conditions set forth below if it ships the products described in any purchase order, or acknowledges or confirms receipt of the accompanying purchase order. Any different or additional terms that may be contained in Seller’s acknowledgment, confirmation, invoice or any other communication made in response to the purchase order are hereby objected to unless Buyer agrees otherwise in writing. Buyer’s silence or acceptance of any products shipped shall in no event be deemed acceptance by Buyer of any term contained in Seller’s acknowledgment, confirmation, invoice or other communication made in response to the purchase order.
- QUANTITY; PRICE: The purchase order must not be filled in greater quantities or at prices higher than shown without written approval of an authorized representative of Buyer. If the price is not shown on the purchase order, it is agreed that Seller shall furnish at a unit price no higher than the unit price at which Buyer last purchased such products from Seller, unless a different price is expressly approved in writing by an authorized representative of Buyer. Seller’s acceptance of the purchase order shall constitute a warranty to Buyer that the prices agreed upon do not exceed any applicable maximum ceiling prices established by any regulations.
- INSPECTION: All products delivered by Seller shall be subject to Buyer’s reasonable right of inspection and rejection. All products must conform to specifications of Buyer, if applicable. Buyer may reject products to the extent they do not conform to Buyer’s specifications or Seller’s warranties (express or implied). Seller shall advise Buyer in advance of any change to products (whether subject to specifications of Buyer or otherwise) and shall obtain Buyer’s written approval in advance of shipping any products that reflect changes in composition or in any other respect in comparison to Buyer’s last purchase of such products. Buyer may return non-conforming products to Seller at Seller’s expense, and Buyer shall have no further obligations of payment or otherwise in respect of such non-conforming products. Payment for any products shall not be deemed an acceptance or waiver of Buyer’s rights of inspection and return. In the event Buyer has already paid for products that are subsequently deemed to be non-conforming, Buyer shall have the option (but not the obligation) to take a dollar-for-dollar credit on its next order from Seller.
- CHANGES TO ORDER: Buyer may at any time, by written notice to Seller, make changes to the (1) drawings, designs or specifications, (2) quantities, (3) method of shipment or packing or (4) place of delivery specified in the purchase order. If any such change affects the time or cost of performance, an equitable adjustment shall be promptly made in the delivery schedule or the purchase price, or both, by written agreement of the parties. Nothing herein shall excuse Seller from proceeding with the purchase order as changed.
- RISK OF LOSS: Unless otherwise specified on the purchase order, all damage or loss to the products covered hereby shall be at Seller’s risk until such products are received by Buyer from the last carrier or shipper.
- FORCE MAJEURE: The purchase order is subject to modification or cancellation by Buyer without cost to Buyer in the event that fire, accidents, labor disputes, wars, government acts, terrorist acts or any other conditions beyond the Buyer’s control affect the purchase hereunder.
- WARRANTIES: Seller warrants to Buyer and Buyer’s customers that all products provided under the purchase order will be free from defect of materials or workmanship, will be fit and sufficient for the purpose intended, will be merchantable and will conform strictly to the terms, conditions, specifications, drawings or samples specified or furnished by Buyer pursuant to the purchase order. The warranties described in this paragraph shall be in addition to those implied or available at or under any applicable law and shall exist notwithstanding the acceptance by Buyer of all or part of the products with respect to which such warranties are applicable.
- INTELLECTUAL PROPERTY: Seller warrants that Buyer’s purchase, use or sale of the products furnished under the purchase order, either in the form in which supplied or in combinations according to Seller’s specifications and recommendations, will not infringe upon any federal, state, local, foreign, international or multinational patent, trademark, copyright, trade secret or similar intellectual property right. Seller agrees to defend, protect, indemnify and hold harmless Buyer, Buyer’s customers and their respective employees and affiliates against all claims of infringement of any such intellectual property right arising or relating in any way to the manufacture, purchase, use or sale of the products furnished under the purchase order and against any and all judgments for or awards of damages, costs and expenses (including but not limited to attorney’s fees) so incurred.
- SURVIVAL OF WARRANTIES: All of the covenants, warranties and representations contained herein shall survive the performance of the purchase order by Buyer and Seller, including without limitation, delivery of the products ordered hereunder, and the payment therefor.
- INDEMNIFICATION: Seller shall indemnify, hold harmless and defend Buyer, Buyer’s Customers and their respective employees and affiliates from all liability, loss, damage or injury to person (including employees and agents of Seller) or property in any manner arising out of or incident to the performance of this contract.
- MODIFICATION; WAIVER: No modification of any provision herein shall be binding upon Buyer unless contained in writing and signed by an authorized representative of Buyer. Buyer’s failure to insist upon strict performance of any term or condition set forth herein shall not be deemed a waiver of any rights or remedies that Buyer shall have and shall not be deemed a waiver of any subsequent breach of the same or any other term or condition hereof. Shipping or receiving of any article under this order shall not constitute a waiver of any right of Buyer hereunder or of any obligation of Seller to comply with any of the provisions hereof.
- ASSIGNMENT: Neither this agreement, the performance thereof nor any interest therein or claim thereunder shall be assigned or transferred without the prior written consent of Buyer.
- GOVERNING LAW: This contract shall be construed and enforced according to the domestic substantive laws of the State of Ohio without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other state. If any provision of this order declared unlawful or invalid, the remaining provisions shall nevertheless continue in full force and effect.
- ENTIRE AGREEMENT: These terms and conditions and the provisions on the purchase order to which these terms and conditions are attached constitute the sole and entire agreement between Seller and Buyer, and shall govern exclusively as to the sale and delivery of any products to Buyer. All prior communications, representations, negotiations and promises with respect to this sale are deemed to be merged herein.